The People v. Omar Xochimitl


Issue before the Court: Whether the police, effectuating a warrantless arrest of the defendant inside his home, received voluntary consent to enter the apartment.


Held: On SSM, with two judges concurring, the court held that whether there was voluntary consent was a “mixed question of law and fact,” and –although whether there really was consent was “open to dispute” – the hearing court’s finding was supported by the record; hence, they affirmed.  The majority deemed unpreserved the interesting issue in the case: whether the arrest was unlawful because the police went to defendant’s home with the intent of making a warrantless arrest.


CAL Observes: The two concurrers, Judges Rivera and Wilson,  agreed in separate concurrences  that the interesting issue was indeed unpreserved.  They each urge, however, that an arrest by police is unlawful if effected with the intention of making warrantless arrest in the home.  Their reasoning is laid out in their separate opinions in People v. Garvin, 30 NY3d 174 (2017). Would any trial-level attorney care to preserve this issue?